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Filed 11/20/20 Gibbons v. Silverado Senior Living Management CA4/1
`NOT TO BE PUBLISHED IN OFFICIAL REPORTS
`
`California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
`publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
`or ordered published for purposes of rule 8.1115.
`
`
`COURT OF APPEAL, FOURTH APPELLATE DISTRICT
`
`DIVISION ONE
`
`STATE OF CALIFORNIA
`
`
`
`
`JAMES E. GIBBONS et al.,
`
` D076703
`
`
`
`
`
`Plaintiffs and Respondents,
`
`v.
`
`SILVERADO SENIOR LIVING
`MANAGEMENT, INC.,
`
`
`
`Defendant and Appellant.
`
`
`
`
`
`
`
` (Super. Ct. No.
` 37-2019-00047592-CU-PO-CTL)
`
`
`
`
`
`APPEAL from an order of the Superior Court of San Bernardino,
`
`County, Donna G. Garza, Judge and San Diego County, Kenneth J. Medel,
`
`Judge.1 Reversed and remanded with directions.
`
`
`
`Giovanniello Law Group and Alexander F. Giovanniello, Thomas C.
`
`Swann, Cat N. Bulaon for Defendant and Appellant.
`
`
`
`Peck Law Group and Steven Charles Peck, Adam J. Peck, Spencer E.
`
`Peck for Plaintiffs and Respondents.
`
`
`1
`The petition to compel arbitration was heard in San Bernardino
`Superior Court, and Judge Garza’s tentative ruling denying the petition
`became her final order. The case was later transferred to the San Diego
`Superior Court.
`
`

`

`
`
`Appellant Silverado Senior Living Management, Inc. dba Silverado
`
`Senior Living—Encinitas (Silverado)2 appeals from the trial court’s order
`
`denying its petition to compel arbitration and motion to stay Gayle Gibbons’s
`
`elder abuse and wrongful death lawsuit brought in her capacity as successor
`
`in interest to James Gibbons, her deceased spouse,3 and in her own capacity.
`
`The court concluded Gayle signed an arbitration agreement as James’s
`
`representative; therefore, she retained a wrongful death claim in her
`
`individual capacity. It exercised its discretion under Code of Civil Procedure4
`
`section 1281.2, subdivision (c), to refuse to enforce the arbitration agreement,
`
`reasoning the existence of Gayle’s separate claim posed a risk of inconsistent
`
`judgments.
`
`
`
`Silverado contends: (1) the arbitration agreement that Gayle signed as
`
`James’s representative was also binding on Gayle individually, thus barring
`
`her separate wrongful death claim; and (2) because the Federal Arbitration
`
`Act (FAA) governs the arbitration agreement, the trial court lacked discretion
`
`to stay arbitration of James’s and Gayle’s claims under section 1281.2,
`
`subdivision (c). We conclude the court erred by denying the petition as to
`
`James’s claims, which were governed by the arbitration agreement and the
`
`FAA; however, it did not err by denying the petition as to Gayle’s individual
`
`
`2
`The complaint names as codefendants Blossom Grove Management Ca,
`LLC dba Blossom Grove Alzheimer’s Special Care Center (Blossom) and
`Scripps Health dba Scripps Memorial Hospital—Encinitas (Scripps);
`however, they are not parties to this appeal.
`
` 3
`
` We refer to respondents by their first names to avoid confusion, and
`intend no disrespect.
`
`Undesignated statutory references are to the Code of Civil Procedure.
`
`2
`
` 4
`
`
`
`
`
`

`

`claim. Accordingly, we reverse the order and remand with directions set
`
`forth below.
`
`FACTUAL AND PROCEDURAL BACKGROUND
`
`The Complaint
`
`
`
`In her capacity as James’s successor in interest (§ 377.32) and on her
`
`own behalf, Gayle sued all defendants for elder abuse (Welf. & Inst. Code,
`
`§ 15600 et seq.). She also alleged causes of action against Silverado and
`
`Blossom for wrongful death, and against Scripps and Doe defendants for
`
`wrongful death by neglect (§ 377.60). She alleged that James, who was over
`
`65 years of age, “developed scabies, MRSA [Methicillin-resistant
`
`Staphylococcus Aureus], sepsis, pressure ulcers, and suffered extreme weight
`
`loss” while in the care and custody of defendants, including Silverado, which
`
`is an assisted-living or residential care facility.
`
`
`
`Gayle further alleged that defendants “recklessly neglected [James] by
`
`breaching their duties of care owed to [him] in failing to provide [him] with
`
`the care and treatment to which he was entitled . . . failing to prevent the
`
`development of infections, failing to report his change of condition and
`
`providing timely care, failing to developing and implementing [sic] care
`
`plans, failing to treat the infections, failing to assist with personal hygiene
`
`resulting in skin breakdown to [James’s] body, failing to provide staff with
`
`the knowledge, skills and competencies to care for residents with infection
`
`and skin breakdown, and failing to prevent [James] from experiencing pain
`
`and suffering.” Gayle also alleged: “Defendants ‘neglected’ [James] as that
`
`term is defined in Welfare and Institutions Code, [section] 15610.57 in that
`
`Defendants themselves, as well as their employees, failed to exercise the
`
`degree of care that reasonable persons in a like position would exercise by
`
`
`
`3
`
`

`

`denying or withholding goods or services necessary to meet [his] basic needs.”
`
`James died in August 2016.
`
`The Petition to Compel Arbitration and Motion to Stay Proceedings
`
`
`
`Silverado in its petition to compel arbitration pointed out that James
`
`had designated Gayle as his attorney-in-fact. It claimed Gayle signed the
`
`arbitration agreement as James’s representative or agent, and the agreement
`
`applied to both James’s and Gayle’s causes of action.
`
`
`
`The arbitration agreement provides that “any claim or dispute . . .
`
`arising out of the provision of services . . . including but not limited to . . . any
`
`action for injury or death arising from negligence, intentional tort and/or
`
`statutory causes of action (including but not limited to alleged violations of
`
`Elder Abuse . . .) will be determined by submission to arbitration as provided
`
`by [the FAA].” It states that “arbitration shall be conducted by one or more
`
`neutral arbitrators in accordance with the procedures set forth in the [FAA],
`
`Code of Civil Procedure [sic].” A separate provision of the agreement states
`
`it “shall be governed by and interpreted under the [FAA], 9 U.S.C. sections
`
`1-16.” The agreement provides it “shall be binding on all parties, including
`
`their personal representatives, executors, administrators, successors,
`
`guardians, heirs, and assigns.” The agreement also states: “Based on the
`
`resident’s mental capacity, the term resident may include responsible party,
`
`[power of attorney], guardian and/or conservator.” (Hereafter the mental
`
`capacity provision; some capitalization omitted.)
`
`
`
`Gayle opposed the petition, arguing: (1) she did not have legal
`
`authority to enter into a contract on James’s behalf; (2) Silverado presented
`
`no evidence that James authorized her to make decisions for his healthcare;
`
`(3) the arbitration agreement fails to comply with statutory requirements;
`
`and (4) the codefendants were not parties to the arbitration agreement.
`
`
`
`4
`
`

`

`
`
`The trial court denied Silverado’s petition, finding that Gayle had
`
`signed the arbitration agreement as James’s representative. The court
`
`concluded Gayle had a separate right to maintain her wrongful death cause
`
`of action in her individual capacity. Pointing out that Gayle did not allege
`
`medical malpractice under section 1295, it stayed arbitration, reasoning
`
`“there could be a possibility of inconsistent rulings” under section 1281.2.
`
`DISCUSSION
`
`I. Gayle’s Wrongful Death Claim Is Not Arbitrable
`
`
`
`Silverado contends that as Gayle signed the arbitration agreement,
`
`“not only did [she] agree to be bound by [it] in her individual capacity, she
`
`expressly agreed that [it] would be governed by the FAA and require that all
`
`claims for [James’s] death, including those based on neglect as alleged in the
`
`complaint, will be arbitrated.” Silverado relies on the arbitration
`
`agreement’s mental capacity provision. Gayle argues that as she was not a
`
`party to the arbitration agreement, she was not required to arbitrate her
`
`wrongful death claim.
`
`
`
`A party generally cannot be compelled to arbitrate a dispute that he or
`
`she has not agreed to resolve by arbitration. (Buckner v. Tamarin (2002) 98
`
`Cal.App.4th 140, 142; Benasra v. Marciano (2001) 92 Cal.App.4th 987, 990
`
`[“The strong public policy in favor of arbitration does not extend to those who
`
`are not parties to an arbitration agreement, and a party cannot be compelled
`
`to arbitrate a dispute that he has not agreed to resolve by arbitration”].)
`
`Whether an arbitration agreement is binding on a third party (e.g., a
`
`nonsignatory) is a question of law subject to de novo review. (Suh v. Superior
`
`Court (2010) 181 Cal.App.4th 1504, 1512.)
`
`
`
`“Unlike some jurisdictions wherein wrongful death actions are
`
`derivative, . . . section 377.60 ‘creates a new cause of action in favor of the
`
`
`
`5
`
`

`

`heirs as beneficiaries, based upon their own independent pecuniary injury
`
`suffered by loss of a relative, and distinct from any the deceased might have
`
`maintained had he survived.’ ” (Horwich v. Superior Court (1999) 21 Cal.4th
`
`272, 283; see San Diego Gas & Electric Co. v. Superior Court (2007) 146
`
`Cal.App.4th 1545, 1550-1551 [“Because a wrongful death action compensates
`
`an heir for his or her own independent pecuniary losses, it is one for ‘personal
`
`injury to the heir’ ”].)
`
`
`
`
`
`We conclude that because Gayle signed the arbitration agreement as
`
`James’s representative, she was a third party to the arbitration agreement
`
`and therefore was not bound to arbitrate her separate wrongful death claim.
`
`We rely on Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC
`
`(2007) 150 Cal.App.4th 469, in which the surviving spouse and three adult
`
`children of Ruth Fitzhugh sued a convalescent care facility for her wrongful
`
`death. (Id. at pp. 471-472.) The surviving spouse had signed two arbitration
`
`agreements with the facility as the decedent’s “legal representative” and
`
`“agent.” (Id. at p. 472.) Although the arbitration agreements were binding
`
`on the decedent’s heirs, the court concluded that the decedent’s surviving
`
`spouse and adult children were not required to arbitrate their wrongful death
`
`claims because no evidence showed that the spouse signed the agreements in
`
`his personal capacity, and the adult children did not sign either agreement.
`
`(Id. at p. 474.) Accordingly, there was “no basis to infer” that the spouse or
`
`adult children “waived their personal right to jury trial on the wrongful death
`
`claim.” (Ibid.)
`
`
`
`The same is true here. Because Gayle signed the arbitration
`
`agreement solely as James’s agent and not in her personal capacity, we have
`
`no basis to infer that she agreed to arbitrate her wrongful death claim. In
`
`context, the mental capacity provision making the arbitration clause binding
`
`
`
`6
`
`

`

`on a “resident,” the definition of which in certain circumstances included the
`
`person granted a power of attorney, means only that the duty to arbitrate the
`
`survivor claims is binding on James and other persons who would assert the
`
`survivor claims on his behalf. The arbitration agreement does not indicate
`
`an intent to bind third parties with claims independent of the survivor
`
`claims, such as wrongful death claimants. We therefore conclude the court
`
`did not err by denying the petition as to Gayle’s separate cause of action.
`
`II. Silverado’s Causes of Action Are Arbitrable
`
`
`
`Silverado contends the court erred in failing to grant its petition to
`
`compel arbitration of all claims, given that the arbitration agreement
`
`specifies the FAA procedures will apply to the arbitration. Gayle concedes
`
`“the arbitration agreement states it is governed by the FAA,” but
`
`nevertheless contends the court had discretion to deny Silverado’s petition
`
`under section 1281.2, subdivision (c).
`
`
`
`“In accordance with choice-of-law principles, the parties may limit the
`
`trial court’s authority to stay or deny arbitration under the [California
`
`Arbitration Act] by adopting the more restrictive procedural provisions of the
`
`FAA.” (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 157.) “[T]he FAA’s
`
`procedural provisions (9 U.S.C. §§ 3, 4, 10, 11) do not apply unless the
`
`contract contains a choice-of-law clause expressly incorporating them.” (Id.
`
`at p. 174.) “The question, therefore, is whether the parties expressly
`
`incorporated the FAA’s procedural provisions into their agreements.” (Id. at
`
`p. 177; see also Cronus Investments, Inc. v. Concierge Services (2005) 35
`
`Cal.4th 376, 387, 394 (Cronus) [“Our opinion does not preclude parties to an
`
`arbitration agreement to expressly designate that any arbitration proceeding
`
`should move forward under the FAA’s procedural provisions rather than
`
`under state procedural law”], italics omitted.)
`
`
`
`7
`
`

`

`
`
`Under section 1281.2, subdivision (c), a court may stay or refuse to
`
`compel arbitration of all or part of an arbitrable controversy when (1) “[a]
`
`party to the arbitration agreement is also a party to a pending court action
`
`. . . with a third party, arising out of the same transaction or series of related
`
`transactions,” and (2) “there is a possibility of conflicting rulings on a
`
`common issue of law or fact.” (§ 1281.2, subd. (c).) For purposes of the
`
`statute, a third party is one who is neither bound by nor entitled to enforce
`
`the arbitration agreement. (Thomas v. Westlake (2012) 204 Cal.App.4th 605,
`
`612.) Section 1281.2, subdivision (c) “ ‘addresses the peculiar situation that
`
`arises when a controversy also affects claims by or against other parties not
`
`bound by the arbitration agreement.’ ” (Cronus, supra, 35 Cal.4th at p. 393.)
`
`“When the trial court makes a discretionary decision under section 1281.2 [,
`
`subdivision] (c), the reviewing court will affirm unless an abuse of discretion
`
`is shown. . . . ‘The court’s discretion under section 1281.2, subdivision (c)
`
`does not come into play until it is ascertained that the subdivision
`
`applies.’ ” (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010)
`
`186 Cal.App.4th 696, 709.)
`
`
`
`“The question of whether the [Arbitration] Agreement incorporated the
`
`FAA’s procedural provisions, thereby eliminating the trial court’s authority
`
`under section 1281.2[, subdivision](c), ‘is a question of law involving
`
`interpretation of statutes and the contract (with no extrinsic evidence). We
`
`therefore apply a de novo standard of review.’ ” (Valencia v. Smyth, supra,
`
`185 Cal.App.4th at pp. 161-162.)
`
`
`
`Here, the arbitration agreement specifies that the FAA’s procedures
`
`apply, and that the agreement shall be governed and interpreted under the
`
`FAA. Accordingly, the court erred by not granting Silverado’s petition to
`
`arbitrate James’s claims for elder abuse and wrongful death. Silverado is
`
`
`
`8
`
`

`

`entitled to the benefit of the arbitration agreement that governs James’s
`
`claims. Moreover, in California, “the Legislature has expressed a ‘strong
`
`public policy in favor of arbitration as a speedy and relatively inexpensive
`
`means of dispute resolution.’ [Citations.] Consequently, courts will ‘ “indulge
`
`every intendment to give effect to such proceedings.” ’ ” (Moncharsh v. Heily
`
`& Blase (1992) 3 Cal.4th 1, 9.) As the California Supreme Court has
`
`concluded: “Any doubts or ambiguities as to the scope of the arbitration
`
`clause itself should be resolved in favor of arbitration.” (Cronus, supra, 35
`
`Cal.4th at p. 386.)
`
`
`
`We recognize that having concluded James’s claims are arbitrable but
`
`Gayle’s claim is not, the parties may be required to participate in duplicative
`
`proceedings. However, we are constrained by the parties’ arbitration
`
`agreement. As the California Supreme Court has recognized, “the FAA itself
`
`contains no provision designed to deal with the special practical problems
`
`that arise in multiparty contractual disputes when some or all of the
`
`contracts at issue include agreements to arbitrate. California has taken the
`
`lead in fashioning a legislative response to this problem, by giving courts
`
`authority to consolidate or stay arbitration proceedings in these situations in
`
`order to minimize the potential for contradictory judgments.” (Cronus, supra,
`
`35 Cal.4th at p. 392.) But that provision—section 1281.2, subdivision (c)—is
`
`inapplicable here because the parties expressly agreed that the FAA applies
`
`to their arbitration agreement. Another court in similar circumstances
`
`stated, “While we may question the wisdom of the parties’ choice, and decry
`
`the potential for inefficiency, delay, and conflicting rulings, the parties were
`
`free to choose their arbitration rules. The court will not rewrite their
`
`contract.” (Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th
`
`1110, 1122.)
`
`
`
`9
`
`

`

`
`
`Unlike the present arbitration agreement which contains provisions
`
`stating the FAA’s procedural rules apply, the trial court relied on cases
`
`containing no such provisions. (See Daniels v. Sunrise Senior Living, Inc.
`
`(2013) 212 Cal.App.4th 674; Avila v. Southern California Specialty Care
`
`(2018) 20 Cal.App.5th 835, 841 [“the agreement here does not even mention
`
`the FAA, much less expressly adopt its procedural rules. Accordingly, the
`
`FAA’s procedural rules do not apply here”]; and Bush v. Horizon West (2012)
`
`205 Cal.App.4th 924, 926 [“we conclude the application of section 1281.2[,
`
`subdivision] (c) was not preempted here by the [FAA]”).
`
`DISPOSITION
`
`
`
`The order denying the petition to compel arbitration is reversed. The
`
`court is directed to enter a new order granting the petition to arbitrate only
`
`as to James Gibbons’s separate claims. Each party is to bear its own costs on
`
`O’ROURKE, J.
`
`appeal.
`
`
`
`
`WE CONCUR:
`
`
`
`HALLER, Acting P. J.
`
`
`
`GUERRERO, J.
`
`
`
`
`10
`
`

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